Ex Parte Gasper

Patent Trial and Appeal Board

Aug 12, 2016

12886048 (P.T.A.B. Aug. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/886,048 09/20/2010 Thomas P. Gasper
28165 7590 08/16/2016
S.C. JOHNSON & SON, INC.
1525 HOWE STREET
RACINE, WI 53403-2236
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
J-5264A 9882
EXAMINER
HOANG, TUBA
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
08/16/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
F074168@scj.com
selechne@scj.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte THOMAS P. GASPER
Appeal2014-006213
Application 12/886,048 1
Technology Center 3700
Before JOSEPH A. FISCHETTI, MICHAEL C. ASTORINO, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1-6 and 8-20 under 35 U.S.C. § 103(a) as
unpatentable over Conway (US 2005/0205916 Al, pub. Sept. 22, 2005) and
Nishino (US 5,297,988, iss. Mar. 29, 1994). We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appellant, "[t]he real party of interest is S. C. Johnson &
Son, Inc." Appeal Br. 2.
Appeal2014-006213
Application 12/886,048
Claimed Subject Matter
Claims 1, 5, and 14 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A method of emitting two or more volatile materials from a
diffuser, the method comprising the steps of:
emitting a first volatile material using a first diffusion
element for a first randomly determined period of time;
emitting a second volatile material using a second
diffusion element for a second randomly determined period of
time; and
determining at least one of the first and second current
emission time periods by adding a randomly determined
INCREMENTAL TIME PERIOD to a set BASE TIME
PERIOD, wherein the BASE TIME PERIOD is greater than 0.
ANALYSIS
The Appellant argues that the combined teachings of Conway and
Nishino fail to teach the "determining step" of independent claim 1, and the
similar recitations of independent claims 5 and 14. See 1A .. ppeal Br. 6-9. The
Appellant's argument is primarily based on the contention that "Conway and
Nishino, alone or in combination, do not disclose or suggest using an
emission time period that is randomly determined." Id. at 7. The
Appellant's argument is not persuasive.
At the outset, we note that the Examiner's rejection of claims 1, 5, and
14 does not rely on a finding that Conway teaches an emission time period
that is randomly determined. See Final Act. 3. As such, the Appellant's
contention that Conway fails to disclose a randomly determined period of
time or duration of emission (see Appeal Br. 7, Reply Br. 4--6) is not
persuasive of error.
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Application 12/886,048
We also note that the Examiner relies on N ishino to teach using a
random number generator to supply a fragrance for randomly determined
periods of time. See Final Act. 3 (citing Nishino, col. 3, 11. 17-63). And, the
Examiner concludes that "[i]t would have been obvious to one of ordinary
skill in the art ... to modify Conway to include the features ofNishino, in
order to provide for varying patterns of fragrance emission, which prevents
users from becoming acclimated to the fragrance and it losing its effect."
Final Act. 3 (citing Nishino, col. 2, 11. 1-5). However, the Examiner's
rejection of claims 1, 5, and 14 does not stop here.
The remainder of the Examiner's rejection includes further reasoning
with regard to the "determining step" of claim 1, and the similar limitations
of claims 5 and 14, in which the Examiner explains that determining current
emission time periods, including incremental time periods being random,
would have been obvious as a result-effective variable that is easily
optimized through routine experimentation. Final Act. 3--4; see Ans. 6-8.
Moreover, the Examiner reasons that the Appellant "has not established -
and examiner has no reason to believe - that the timing/randomness of the
volatile active dispersion relates to the criticality of the invention." Final
Act. 4; see Ans. 6-8.
The Appellant does not appear to acknowledge or argue the remainder
the Examiner's rejection in either the Appeal Brief or the Reply Brief.
Rather, the Appellant appears to focus on how Nishino fails to teach the
determining step as recited in claim 1, and the similar limitations of claims 5
and 14. See Appeal Br. 8-9. For example, the Appellant contends that
"Nishino does not disclose determining a time period for missing [sic] using
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Application 12/886,048
a set base time period and a randomly determined incremental time period."
Id. at 9.
Notably, the Appellant asserts that "nothing about the length of
Nishino' s emission time periods is random. Rather, the emission and rest
time periods ofNishino are set and a random number only determines which
set of emission/rest times is to be used." Id. Moreover, the Appellant
provides an example based on Nishino's disclosure where "pairs of
emission/rest times are pre-determined or set (e.g., a 3.5 second emission
time is paired with a 3 minutes rest time and a 9. 5 second emission time is
paired with a 10 minute rest time)." Id. (citing Nishino, col. 3, 11. 54---69).
However, the foregoing does not suggest error in the Examiner's rejection.
Although Nishino' s resulting emission time periods are set, they are
randomly determined by a random number producing circuit. See Nishino,
col. 3, 11. 26-63; see also id. at col. 5, 11. 28-53. Cf Spec., paras. 47-51 (the
Specification describes an embodiment that results in a random
determination of set time periods where an equation uses a random number
"NI," which is selected by a random number generator, to provide a set of
sixteen current emission time periods- separated by 5 minute intervals -
starting at 45 minutes and ending at 120 minutes).
Thus, we sustain the rejection of independent claims 1, 5, and 14, and
their respective dependent claims 2--4, 6, 8, 9-13, and 15-20, which are not
argued separately by the Appellant.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1---6 and 8-20.
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Appeal2014-006213
Application 12/886,048
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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